Shariff v. Immigration & Naturalization Service

28 F. App'x 720

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2002
• Docket: No. 00-70324; I & NS No. A72 132 133/A72 132 145
• Status: Published

Opinions

MEMORANDUM

**

Petitioners Mary Monica Shariff (“Shariff’) and her daughter Reesha seek review of the final order of the Board of Immigration Appeals (“BIA”).¹ The BIA’s decision that Shariff was not entitled to asylum and relief from deportation is reviewed under the substantial evidence standard. Rivera-Moreno v. INS, 213 F.3d 481, 485 (9th Cir.2000). To reverse the BIA’s decision, Shariff must establish not only that the evidence supports a contrary decision, but also that it compels it. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (citing Prasad v. INS, 47 F.3d 336, 338-39 (9th Cir.1995)).

Shariff, an ethnic Indian and citizen of Fiji, presented evidence that ethnic Fijians insulted and threatened her and stole her property. She also presented evidence that her house was repeatedly robbed and eventually burned down. The ethnic Fijian police were not able to establish the cause of the burning of Shariff s house. In his dissent, BIA Chairman Schmidt correctly pointed out that this fact does not eliminate the house-burning as an objectively reasonable basis for fearing persecution.

Moreover, there is evidence that a “pattern or practice” of persecution of ethnic Indians currently exists in Fiji, which relieves Shariff of the requirement to show that she would be singled out individually for persecution. See 8 C.F.R. § 208.13(b)(2)(iii). On May 19, 2000, a group of armed ethnic Fijians stormed the Parliament and seized the ethnic Indian Prime Minister and his cabinet. According to the State Department’s most recent Country Report, the Fijian government’s human rights record “deteriorated” in the aftermath of this coup and is now “generally poor.” U.S. Department of State, Country Reports on Human Rights Practices for 2000, (2001) available at http:// www.state.gov/g/drl/ rls/hrrpt/2000/eap/ index.cfm?docid=699. The Country Report details many incidents of violence, theft, looting, and arson against ethnic Indians, some of which were carried out with the 'assistance of the ethnic Fijian police. The violence resulted in the internal displacement of hundreds of ethnic Indians. Id. The legal status of ethnic Indians also appears to be in limbo since the interim administration that followed the coup scrapped the race-neutral constitution and appointed a constitutional review commission that, like the interim administration itself, had no ethnic Indian members. Id.

Under Gafoor v. INS, 231 F.3d 645, 655-56 & n. 6 (9th Cir.2000), it is appropriate for us to consider this evidence of an ongoing pattern or practice of persecution of ethnic Indians in Fiji. On the basis of the State Department’s latest Country Report, we remand the case to the BIA to determine whether circumstances have changed since publication of that report such that Shariff no longer has a well-founded fear of persecution.

PETITION FOR REVIEW GRANTED.

RAWLINSON, Circuit Judge, Dissenting.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . We have jurisdiction pursuant to INA § 106, 8 U.S.C. § 1105a (1994), as amended by IIRIRA § 309, 110 Stat. 3009 (1996).